The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-10-28
Hon. ]. Randolph Tucker Questions the Con-
stitutionality of the Statute Under Which
the Trial Court Jurors were Selected,
And Urges that Rights Granted by the
Nations Supreme Law We're Violated.
Attorney-General Hunt Also Addresses the
Court in Opposition to the Petition in
Forcible and Effective Argument.
THE ANARCHIST APPEAL.
Argument Before the Supreme Court by ST
Tucker and Attorney General Hunt


Argument Before the Supreme Court by STR.
Tucker and Atsorney-General Hunt
WASHINGTON. Ocs. 2T-Anticipation OF the
argument before the United States Supreme
Court. to-day upon the petition for a VT it Of
error in the Chicago Anarchist case. attracted to
the Capitol a crowd Of eager people who were as
anxious to gain admission to the courtroom as
if the Anarchists themselves were to be present
in chains and !eg-:etters and to argue their own
case in person. More than an hour before the
court assembled the courtroom densely
packed with people. who not only occupied all
the seats provided for spectators, but encroached
upon the precincts of the bar and stood in
closely packed throngs in the open spaces on
each side of the door. Even out in the corridor
there was crowd endeavoring to at least get
glimpse OF the interior of the court
room through the entrance. The audience was
destined. however, to be, at least for q time.
disappointed. When the court called 10
order at IL O'Clock and the candidates for ad
mission to the bar had oeen sworn, the Chief
justice announced that the court would proceed
with the unfinished business of yesterday.
This unfinished business was case from Louis
iana, which. however important to the litiGants,
had very little popular interest.
The argument in the Louisiana case was cor-
cluded by Mr.. Beckwith at five minutes past l,
and the Chief justice said:
'We are ready now to hear the motion for
writ of error in the case Of Spies and Others"
Gen. B. f. Butler asked the court how much
time would be allowed for argument His
brother, Mr.. Tucker, he said. represented, the
majority of tho petitioners; he himself repre-
sented two Of them whose cases were in some
respects different from these of the others. He
would not. he said, speak merely for the sake OF
speaking. but no would not like to be hurried.
The Chief-justce asked how much time be
desired
General Butler said he would like an hour and
half for himself and an hour and half FOR his
associate. Mr.. Tucker.
The Chief. justice said: "Very we'll We will
allow you three hours a eide"
Attorney general Hunt. of Illinois. said thas
as he and his associates did not yet know what
scope the argument would takeahe could not say
how much time tpsy would desre. He would
like, however, to have opportunity given to
his associate. Mr.. GriEnell. TO speak.
The Chief Justice said that each side would
be allowed three hours. and that Mr.. Grinnel
might speak.
Alta quarter past one Mr.. j. Randolph Tuck
or opened the argument in support OF the petit
tion for a writ of error. He said that the ques-
tions upon this application were. frst. have
federal questions been raised in this case; and,
second, does their character justify their review
in this court. The act of 1867, which has been
deemed by this court to be substitute for the
twenty-sixth section Of the judiciary act, gives
jurisdiction, first, where a statute or authority
exercised under the State is repuenant to the
Constitution OF the United States; and. second,
where a right. privilege immunity claimed
-
argued that this statute should
be construed literally to the party
making the appeal. since is was
evidently the intention of its trainers to give
free access to this court Therefore. IL any
litieant presents a case in which the question of
conflict between tho rulings of court in the
enforcement of any law OF the State and the
Constitution of the United States arises. it is
not necessary that such hteant should establish
actual repugnauce the Constitution but only
to show that there is conflict. II am glad to
believe" said Mr. Tucker. that the Cons tltu-
tion of the United States has made this court Of
justice refuge for any man who finds oppres-
sion under the local decisions of any Common
wealth In the Union. 1t is a city OF refuge from
the avenger of blood. and man who comes
here and takes hold of the horns of this altar OF
justice cannot be refused a hearing"
MIR Tucker then said that in the order made
by tile court in this case it was stated that
writ OF error did not Issue from this court asa
matter OF conrse. bnr only upon proof that the
petition er was entitled to It, He thought, how
ever. that If the court had jurisdiston, then the
writ snust issue as a matter of right, and to
establish the Jurisdiction of the court it was
only necessary to show a conflict between tne
Constitution and the rulings of the court below.
NJ would make dis'ine,isn oenI.s said
rspurn.ucs ; % where conflict aI is shown,
jurisdiction attaches and entities us to the
writ. Repugnance must be shown as a ground
for reversal of judgment" hr. Tucker said
that the policy of this court had seemed to be to
look rather irdulgenty upon petitions for writs
of error in civil cases-to look rather for reasons
they should be refused. If this it's policy
in civil cases, how much more should it be so in
cases of criminal character. where the life Of .
citizen was at stake-whero life was about to be
taken away in violation OF the Consfitution.
Proceeding then to the merits Of the case. Mr.
Tucker said that IL was not necessary that a law
of State should be absolutely and on its face
unconstitutional in order to give this court juris-
dcton of case under It. II a law, seemingly
fair and just on its face, should have put upon
it by the Stats courts q construction contrary to
the Constitution, that was enough to give this
court Jurisdiction. II any department of a State
government violates the terms OF the fourteenth
amendment, it is the State which violates it.
Mr.. Tucker then reviewed the history OF
the adoption of the fourteenth amendment. and
said that although 1t was originally in
rights Of the enfranchised blacks. there was no
reason why white citizens should not also enjoy
the benefit Of its provisions Mr. Tucker
quoted the fourteenth amendment and discussed
the meaning Of the words due process of law"
and said that although 1t had been held by this
court that trial without indictment by grand
jury might be due process of law" and might
be perfectly constitutional, it had never been
held intimated that trial by perit jury
could be dispensed with. 1t seemed. he said to
be everywhere conceded that .'due process of
law required trial by jury of ones peers
After quoting copously from authorities and
adjudged cases in support of this posi-
ton. Mr. Tucker said: Nov. II l hav-
succeeded in showing that due process nf
law means trial by jury. the question
arises what kind of jury. for 1t is of the
senee of jury trial that it shall not be before a
packed jury; that a Juror shall not have made
up his mind, before the case is heard. that
ought to be hanged II Is essential that the
jury should be unbiased. unprcjudiced and i'm
partial. and that IL should NOT be a class jurv"
Mr. Tucker then asserted that the jury law of the
State Of Illinois was uncoustituti tion nj In that
provided that the forming OF opinion from
reports or from newspaper accounts OF . certain